Advance Opinions on Constitutional Questions

Report Outline
Proposed New Method of Testing Federal Laws
Advisory Opinions by State Supreme Courts
The Supreme Court and the Advisory Opinion
Means of Self-Help Available to Congress
Special Focus

Proposed New Method of Testing Federal Laws

Two Years and nine months elapsed between President Roosevelt's signature of the Tennessee Valley Authority Act and the rendering by the Supreme Court of its first decision in a case contesting the validity of the act. The Court held, February 17, 1936, that the federal government had constitutional authority to construct the Wilson Dam at Muscle Shoals, to sell surplus electric power developed at the dam, and to purchase and maintain transmission lines to carry this surplus power to a “fair market.”

The Court did not rule generally on the constitutionality of the Tennessee Valley Authority Act in this case. Chief Justice Hughes specifically stated that it expressed no opinion as to “the constitutional right of the government to acquire or operate local or urban distribution systems,” as to “the status of any other dam or power development in the Tennessee Valley,” or as to “the validity of the Tennessee Valley Authority Act or of the claims made in the pronouncements and program of the Authority apart from the questions we have discussed.” These issues were not directly involved in the case at bar and, said Hughes, “the judicial power does not extend to the determination of abstract questions.”

The decision was narrowed substantially to the issues presented by the government's special counsel. Victory on the chief of these issues fell far short of validating the T. V. A. project in all its essential features, but the decision was heartily welcomed by the Roosevelt administration and it was stated that plans would now go forward for setting up similar power and regional development authorities in other parts of the country. The administration evidently considers it unlikely that the Court will destroy the project it has now permitted to go forward by finding in a later case that constitutional limitations were exceeded in provisions of the Tennessee Valley Authority Act which remain to be passed upon.